By Francesca Colla and Karolina Letniowska

On the 22nd of October, the Constitutional Tribunal of Poland issued a ruling, which amounts to a virtually total ban on abortion. Protests have been organized all over the country every day since the Tribunal’s decision.

Abortion in Poland is regulated by the law adopted in 1993. It is already one of the strictest regulations in Europe, allowing for termination of pregnancies only in case of a serious threat to the life or health of the woman, when the pregnancy is the result of a criminal act (such as incest or rape) or when there exists high probability that the foetus is affected by serious and irreversible malformations or life-threatening illnesses. The ruling of last week outlaws the last of these justifications, which represents the basis for over 90% of abortions in the country, leading therefore to an effective ban on abortion.

The Tribunal declared the provision of the 1993 abortion law to run contrary to article 38 of the Polish Constitution, which guarantees and protects the right to life of every human being, in connection with article 30, declaring the dignity of every human being to be an inviolable human right, and article 31 sec. 3, which declares that constitutional rights may be limited only when it’s necessary for the protection of the democratic state, protection of the environment, health or morality, or protection of the rights of other people. However, these limitations cannot violate the essence of the right in question.

In order to grasp the underlying problem of the current situation, it is crucial to understand that, as a result of deep institutional and judicial reforms introduced by PiS (Law and Justice) party in the last four years, the Constitutional Tribunal is now an effectively politicised body.  At the beginning of its first governmental mandate, PiS nominated five new judges to the Constitutional Tribunal as opposed to the lawful two, and subsequently refused to publish and respect the judgment of the Tribunal which declared these nominations to be unlawful.  The current President of the Tribunal, Julia Przyłębska, was appointed in 2016 on recommendation of PiS and her appointment was heavily criticized and contested since it did not follow the procedure foreseen by the Polish Constitution for the appointment of judges to the Constitutional Tribunal. Julia Przyłębska has closed ties with PiS and personally with Jarosław Kaczyński, the party leader and deputy Prime Minister.

The Tribunal is under the apparent influence of the executive, and the judgment of 22nd of October comes as the latest of a long series of attempts from the government to considerably limit women’s rights in this respect.

Already in 2016, the government, led by PiS , attempted to introduce a legislation that would ban all abortion and introduce criminal liability for women defying the law. In 2018, a new legislative proposal that removed criminal liability but would still constitute a total ban on abortion was under discussion. In both cases the government had to back up following mass protests and strikes in the country.  This time, the issue of abortion has been ‘dealt with’ not in the parliamentary hall but in the Tribunal’s chambers.

There are feelings, within the population and civil society, that this latest move against women’s reproductive rights was taken in a way so as to allow PiS not to take any political responsibility. Moreover, many point to the inappropriateness of the timing, in the midst of the pandemic, when the country is registering its highest ever numbers of cases and simultaneously to the introduction of new restrictions on public gatherings. Some suspect that in the next weeks it will become very convenient for the government to point to the protests as the main cause of what is an already inevitable health crisis, in order to, once again, avoid political responsibility.

On a more legal note, it is interesting to notice that the argument which forms the basis of the Constitutional Tribunal’s decision, namely that abortion due to foetal defects runs contrary to  the right to life, seems weak and incoherent. In line with this principle, the same should apply at least to one of the other two kinds of legal abortion foreseen by the Polish legislation – that is in the case of pregnancies resulting from a criminal act -. However, such position would probably be culturally and morally unacceptable even for a large part of the most conservative and catholic fractions of Polish society. It seems that the right to life is not really the issue at stake here, as much as a game of politics and a strategy for PiS to pursue its interests. Interestingly, the party has been criticized by far-right politicians and representatives of the Church for not respecting its promises to restrict abortion.

Kaczynski addressed the nation on Tuesday evening and called on PiS supporters to go on the streets of Warsaw on Friday – when the biggest protest was scheduled to happen – in order to defend churches and the Polish way of life against those that – according to Kaczynski –  declared war against them. Because of the language employed, Kaczynski’s speech was compared by many to the one given 1981 by General Jaruzelski when declaring the beginning of martial law in the country.

Women are done with having their rights and their lives being used as tools for the government and the Church to advance their political interests. Already in 2016 and again in 2018 they protested and managed to block restrictive and hidebound proposals from turning into law, but this time the scale of dissent and rage is unprecedented. People have been protesting all over Poland every day since the ruling was issued, on the 22nd of October. On Wednesday 100.000 protesters, a sixth of the city’s population, have taken the streets of Wrocław. Apart from the bigger urban centres, protests have been organized in numerous smaller centres around the country, signalling a widespread dissent, which goes beyond the traditional political divide between urban and rural areas.

Yesterday evening, more than 100.000 people marched through the streets of Warsaw: the biggest public demonstration since the fall of Communism in 1989. Although neo-fascist groups attacked protesters in those spots were the crowd was less numerous, it appears that the protests managed to stay peaceful and no major accidents occurred. However, prosecutors are starting to bring charges against organizers and protesters. As a result of reforms introduced by PiS since 2016, which, among other things, merged the offices of the Ministry of Defence and that of Public Prosecutor General, Public Prosecution in Poland is not anymore fully independent and autonomous.

It is clear, from this week’s protests, that a great part of Polish society has had enough of seeing their rights, as well as democracy and the rule of law in their country, being attacked and stepped on.

Protests are scheduled to continue across the country, until some serious and satisfactory response will come from the Government.